IN THE COURT OF APPEALS OF IOWA
No. 14-1857 Filed December 23, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
PAUL KENNETH HOWARD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
District Associate Judge.
Paul Howard appeals his convictions for assault against a health care
provider, assault against another staff person, and disorderly conduct.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ. 2
VAITHESWARAN, Judge.
Paul Howard was admitted to the emergency room of a Davenport
hospital for treatment of stab wounds he sustained after being accosted by three
men outside a bar. Howard did not cooperate with hospital personnel, including
nurse Caryn Clinton. The State eventually charged him with crimes arising from
his behaviors at the hospital. A jury found him guilty of assaulting a health care
provider, assaulting another staff person, and disorderly conduct.
On appeal, Howard contends his trial attorney was ineffective in failing to
(1) challenge the sufficiency of the evidence supporting the assault-on-a-health-
care-provider count and (2) object to certain jury instructions. To prevail, Howard
must show counsel did not perform an essential duty and prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
I. Ineffective Assistance—Sufficiency of the Evidence
“A claim of ineffective assistance of trial counsel based on the failure of
counsel to raise a claim of insufficient evidence to support a conviction is a
matter that normally can be decided on direct appeal.” State v. Truesdell, 679
N.W.2d 611, 616 (Iowa 2004) (citing State v. Scalise, 660 N.W.2d 58, 62 (Iowa
2003)). “[I]f the record reveals substantial evidence, counsel’s failure to raise the
claim of error could not be prejudicial.” Id.
The jury was instructed the State would have to prove the following
elements of assault on a health care provider:
1. On or about the 12th day of April, 2014, the defendant did an act which was intended to cause pain or injury, result in physical contact which was insulting or offensive, or place Caryn Clinton in fear of an immediate physical contact which would have been painful, injurious, insulting, or offensive to Caryn Clinton. 3
2. The defendant had the apparent ability to do the act. 3. Caryn Clinton was a health care provider.
(Emphasis added.) In pertinent part, the jury was provided the following
definition of “health care provider”: “‘Health care provider’ means an emergency
medical care provider . . . who is providing or who is attempting to provide health
services as defined in Section 135.61 in a hospital.” Iowa Code section
135.61(12) (2013) defines “health services” as “clinically related diagnostic,
curative, or rehabilitative services.”
Howard contends Clinton “was no longer providing health services
because any diagnostic, curative, or rehabilitative services had ceased” at the
time of the assault. A reasonable juror could have found otherwise.
A Davenport police officer testified he was called to the hospital to
investigate a stabbing. He arrived to find the stabbing victim “screaming, yelling
[and] cursing” at emergency room staff and “the whole emergency room in an
uproar.”
Nurse Clinton stated Howard became agitated when he was told his
clothes and cell phone were at the branch that admitted him. He “yell[ed]
profanities,” “threaten[ed]” the nurses, and “attempted to strike [her] in the face.”
The thought going through her mind was “this is going to hurt.” Clinton testified
she “was scared.”
A clinical assistant confirmed Howard’s agitated state and his assaultive
conduct. He testified Howard “started cussing” and “threatening” him, then spat
at him and hit him on the side of his face, knocking his glasses off. 4
Although Howard testified he had scant recollection of these events,
reasonable jurors could have found from the testimony of the State’s witnesses
that Howard was cognizant of his surroundings throughout his one-and-one-half-
to two-hour stay. On this score, they could have considered “coma” testing
performed every fifteen minutes, which revealed Howard was conscious and
aware, even while agitated.
In sum, reasonable jurors could have found Clinton was providing health
services when Howard assaulted her. Because the record contains substantial
evidence to support this element, counsel’s failure to challenge the sufficiency of
the evidence on this ground could not be prejudicial.
II. Ineffective Assistance—Jury Instructions
Howard argues his trial attorney was ineffective in: (1) failing to challenge
the absence of a knowledge requirement in the marshalling instruction governing
assault on a health care provider, (2) failing to challenge a presumption of
knowledge in the instruction defining a health care provider, as well as confusing
terms in the same instruction, and (3) failing to object to the marshalling
instruction on disorderly conduct on the ground it specified a different alternative
than the alternative with which he was charged.
We begin with the marshalling instruction governing assault on a health
care provider. As Howard asserts, this instruction did not explicitly require the
State to prove Howard knew Clinton was a health care provider. Knowledge is a
statutory requirement. See Iowa Code § 708.3A(4). This omission would have
been fatal to the State’s case but for the fact that the State presented extensive
evidence on the requirement. As noted, Clinton testified to objective 5
measurements of Howard’s conscious state. She also recounted the specific
epithet Howard hurled at her, a phrase showing an awareness of her gender.
She and her colleague provided detailed descriptions of the assaults and
Howard’s overall demeanor in the emergency room. There was simply no
question Howard knew Clinton was a health care provider when he assaulted
her.
Given the overwhelming evidence supporting the knowledge requirement,
the omission of this requirement from the jury instruction could only have had a
negligible effect on the verdict. See State v. Maxwell, 743 N.W.2d 185, 197
(Iowa 2008); State v. Boggs, 741 N.W.2d 492, 509 (Iowa 2007). We conclude
there is no reasonable probability the outcome would have been different had
counsel objected to the omission of the knowledge requirement in the
marshalling instruction. Strickland, 466 U.S. at 694.
We turn to the instruction defining a health care provider. The instruction
contained the following presumption, drawn from the statute: “A person who
commits an assault under this section against a health care provider in a hospital
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IN THE COURT OF APPEALS OF IOWA
No. 14-1857 Filed December 23, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
PAUL KENNETH HOWARD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
District Associate Judge.
Paul Howard appeals his convictions for assault against a health care
provider, assault against another staff person, and disorderly conduct.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ. 2
VAITHESWARAN, Judge.
Paul Howard was admitted to the emergency room of a Davenport
hospital for treatment of stab wounds he sustained after being accosted by three
men outside a bar. Howard did not cooperate with hospital personnel, including
nurse Caryn Clinton. The State eventually charged him with crimes arising from
his behaviors at the hospital. A jury found him guilty of assaulting a health care
provider, assaulting another staff person, and disorderly conduct.
On appeal, Howard contends his trial attorney was ineffective in failing to
(1) challenge the sufficiency of the evidence supporting the assault-on-a-health-
care-provider count and (2) object to certain jury instructions. To prevail, Howard
must show counsel did not perform an essential duty and prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
I. Ineffective Assistance—Sufficiency of the Evidence
“A claim of ineffective assistance of trial counsel based on the failure of
counsel to raise a claim of insufficient evidence to support a conviction is a
matter that normally can be decided on direct appeal.” State v. Truesdell, 679
N.W.2d 611, 616 (Iowa 2004) (citing State v. Scalise, 660 N.W.2d 58, 62 (Iowa
2003)). “[I]f the record reveals substantial evidence, counsel’s failure to raise the
claim of error could not be prejudicial.” Id.
The jury was instructed the State would have to prove the following
elements of assault on a health care provider:
1. On or about the 12th day of April, 2014, the defendant did an act which was intended to cause pain or injury, result in physical contact which was insulting or offensive, or place Caryn Clinton in fear of an immediate physical contact which would have been painful, injurious, insulting, or offensive to Caryn Clinton. 3
2. The defendant had the apparent ability to do the act. 3. Caryn Clinton was a health care provider.
(Emphasis added.) In pertinent part, the jury was provided the following
definition of “health care provider”: “‘Health care provider’ means an emergency
medical care provider . . . who is providing or who is attempting to provide health
services as defined in Section 135.61 in a hospital.” Iowa Code section
135.61(12) (2013) defines “health services” as “clinically related diagnostic,
curative, or rehabilitative services.”
Howard contends Clinton “was no longer providing health services
because any diagnostic, curative, or rehabilitative services had ceased” at the
time of the assault. A reasonable juror could have found otherwise.
A Davenport police officer testified he was called to the hospital to
investigate a stabbing. He arrived to find the stabbing victim “screaming, yelling
[and] cursing” at emergency room staff and “the whole emergency room in an
uproar.”
Nurse Clinton stated Howard became agitated when he was told his
clothes and cell phone were at the branch that admitted him. He “yell[ed]
profanities,” “threaten[ed]” the nurses, and “attempted to strike [her] in the face.”
The thought going through her mind was “this is going to hurt.” Clinton testified
she “was scared.”
A clinical assistant confirmed Howard’s agitated state and his assaultive
conduct. He testified Howard “started cussing” and “threatening” him, then spat
at him and hit him on the side of his face, knocking his glasses off. 4
Although Howard testified he had scant recollection of these events,
reasonable jurors could have found from the testimony of the State’s witnesses
that Howard was cognizant of his surroundings throughout his one-and-one-half-
to two-hour stay. On this score, they could have considered “coma” testing
performed every fifteen minutes, which revealed Howard was conscious and
aware, even while agitated.
In sum, reasonable jurors could have found Clinton was providing health
services when Howard assaulted her. Because the record contains substantial
evidence to support this element, counsel’s failure to challenge the sufficiency of
the evidence on this ground could not be prejudicial.
II. Ineffective Assistance—Jury Instructions
Howard argues his trial attorney was ineffective in: (1) failing to challenge
the absence of a knowledge requirement in the marshalling instruction governing
assault on a health care provider, (2) failing to challenge a presumption of
knowledge in the instruction defining a health care provider, as well as confusing
terms in the same instruction, and (3) failing to object to the marshalling
instruction on disorderly conduct on the ground it specified a different alternative
than the alternative with which he was charged.
We begin with the marshalling instruction governing assault on a health
care provider. As Howard asserts, this instruction did not explicitly require the
State to prove Howard knew Clinton was a health care provider. Knowledge is a
statutory requirement. See Iowa Code § 708.3A(4). This omission would have
been fatal to the State’s case but for the fact that the State presented extensive
evidence on the requirement. As noted, Clinton testified to objective 5
measurements of Howard’s conscious state. She also recounted the specific
epithet Howard hurled at her, a phrase showing an awareness of her gender.
She and her colleague provided detailed descriptions of the assaults and
Howard’s overall demeanor in the emergency room. There was simply no
question Howard knew Clinton was a health care provider when he assaulted
her.
Given the overwhelming evidence supporting the knowledge requirement,
the omission of this requirement from the jury instruction could only have had a
negligible effect on the verdict. See State v. Maxwell, 743 N.W.2d 185, 197
(Iowa 2008); State v. Boggs, 741 N.W.2d 492, 509 (Iowa 2007). We conclude
there is no reasonable probability the outcome would have been different had
counsel objected to the omission of the knowledge requirement in the
marshalling instruction. Strickland, 466 U.S. at 694.
We turn to the instruction defining a health care provider. The instruction
contained the following presumption, drawn from the statute: “A person who
commits an assault under this section against a health care provider in a hospital
. . . is presumed to know that the person against whom the assault is committed
is a health care provider.” See Iowa Code § 708.3A(5)(d).
The Iowa Supreme Court exhaustively discussed presumptions and their
constitutionality in State v. Rinehart, 283 N.W.2d 319, 321 (Iowa 1979). The
court stated, “In order for a [presumption] to pass constitutional muster, it must
be presented in such a manner that the jury is fully apprised of their option to
reject its application.” Rinehart, 283 N.W.2d at 322. The court found the
presumption in that case constitutional. Id. at 323. In a subsequent opinion, 6
State v. Winders, 359 N.W.2d 417, 420 (Iowa 1984), the court concluded an
instruction specifying that a presumption could be “rebutted by the Defendant”
failed to pass constitutional muster because the jury could read the language as
impermissibly shifting the burden of proof to the defendant.
The statutory presumption used here did not explicitly shift the burden of
proof to the defendant, but it also did not inform jurors they could reject
application of the presumption. While Howard cogently argues the presumption
crossed a constitutional line, we find it unnecessary to decide this issue because,
as discussed, the State presented overwhelming evidence that Howard knew
Clinton was a health care provider. In light of this evidence, the presumption was
superfluous.
Howard also challenges the “health care provider” instruction on the
grounds that it included “technical” and inapplicable Code provisions and
excluded the definitional language of “health services as defined in Section
135.61.” Again, but for the State’s evidence on what occurred at the hospital,
Howard’s argument might hold sway. Because the evidence overwhelmingly
established that Clinton was a “health care provider” and Howard knew she was,
we conclude Howard failed to establish Strickland prejudice.
We are left with Howard’s challenge to the disorderly conduct instruction.
The instruction read as follows:
The State must prove all of the following elements of Disorderly Conduct by using abusive epithets/threatening gestures: 1. On or about the 12th day of April, 2014, the defendant was in a public place. 2. The defendant engaged in fighting or violent behavior. If the State has proved both of the elements, the defendant is guilty of Disorderly Conduct by using abusive epithets/ 7
threatening gestures. If the State has failed to prove either of the elements, the defendant is not guilty.
Howard argues counsel was ineffective in failing to object to this instruction on
the ground it required proof of a different alternative of disorderly conduct than
the charged alternative.
The law is clear:
If a trial information simply charges a violation of a statute in general terms without specifying the manner in which the offense was committed, the State may prevail by showing that the evidence is sufficient under any available theory. However, when a crime may be committed in different ways and the State specifies one way, the offense must be proved to have been committed in the manner charged.
State v. Smithson, 594 N.W.2d 1, 3 (Iowa 1999) (citation omitted).
Where there is a variance between the crime charged and the proof at trial, we will require a new trial if a substantial right of the defendant is prejudiced. A variance between the information and the proof is prejudicial if the defendant is not fairly notified of the charges against him so that he may prepare to defend.
State v. Willet, 305 N.W.2d 454, 457 (Iowa 1981) (citations omitted).
Howard was charged with a single alternative of disorderly conduct—
“direct[ing] abusive epithets or mak[ing] any threatening gesture which the
person knows or reasonably should know is likely to provoke a violent reaction by
another.” See Iowa Code § 723.4(3). The jury instruction made reference to this
alternative but required the State to prove the elements of a different
alternative—“[e]ngag[ing] in fighting or violent behavior in any public place or in
or near any lawful assembly of persons.” Id. § 723.4(1). To make matters even
more confusing, the prosecutor referred to subsections (2) and (3), but not (1), in 8
reading a statement of the case to the jury. And, during closing argument, the
prosecutor referred to the elements of subsection (1) exclusively.
As noted, the jury instruction required proof that Howard was in “a public
place.” The State presented scant if any evidence supporting this element. In
fact, the contrary was true. Clinton testified that when Howard arrived he was
moved “into one of our larger rooms.” The room had a curtain. While the curtain
was open, there is no indication members of the public could gain access. There
is also no indication Howard freely moved in and out of the room. When the
officer arrived, he was being held down on the bed and, when the assault took
place, he was still on the bed. We conclude the “public place” requirement was
not satisfied. If we were reviewing the jury instruction directly, rather than under
an ineffective-assistance-of-counsel rubric, reversal would be mandated because
the instruction was erroneous and the trial information furnished no notice of the
State’s intention to rely on subsection 1.
The hurdle Howard faces is Strickland prejudice. The State presented
overwhelming evidence that Howard “direct[ed] abusive epithets or ma[de] a[]
threatening gesture which [he knew] or reasonably should [have] know[n] [was]
likely to provoke a violent reaction by another.” See Iowa Code § 723.4(3). In
light of this evidence, there is no reasonable probability the outcome would have
been different had counsel objected to the clearly erroneous instruction and
succeeded in having the elements of the “epithet” alternative rather than the
“public place” alternative included in the instruction. 9
III. Cumulative Error
Howard contends cumulative errors mandate reversal. See State v. Clay,
824 N.W.2d 488, 500 (Iowa 2012) (stating reviewing courts “should look to the
cumulative effect of counsel’s errors to determine whether the defendant satisfied
the prejudice prong of the Strickland test.”). Having found no Strickland prejudice
on any of the grounds raised by Howard, we decline to find cumulative error. We
affirm Howard’s judgment and sentences.